Citation Nr: 20042013 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 17-24 881 DATE: June 19, 2020 REMANDED 1. Entitlement to a rating in excess of 90 percent for bilateral hearing loss is remanded. 2. The appeal to reopen a claim of service connection for a back disability is remanded. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from December 1972 to April 1973. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a December 2015 Department of Veterans Affairs (VA) rating decision. In April 2020, a videoconference hearing was held before the undersigned; a transcript is in the record. 1. Entitlement to a rating in excess of 90 percent for bilateral hearing loss. On December 2015, July 2016, November 2016, and November 2018 VA audiological examinations, it was noted that the Veteran provided inconsistent responses in testing even with reinstruction; the results were deemed unreliable. The November 2018 examiner recommended audiometric reevaluation to establish true thresholds for rating the disability. No further testing to assess the severity of the Veteran’s bilateral hearing loss was conducted. Ordinarily, absent a showing of good cause, a Veteran’s refusal to participate in/cooperate with a VA examination is akin to a failure to report for a VA examination, leading to processing the claim under 38 C.F.R. § 3.655(b). However, the record is not clear whether the Veteran’s audiometric testing was invalid due to his refusal to cooperate or for another reason (e.g., he did not understand, or through no fault of his own was unable to comply with instructions). Another examination to clarify the matter (and assess the current severity of the bilateral hearing loss) is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran is reminded that a failure to appear for such examination without good cause, or refusal to cooperate with the examination will result in the claim being adjudicated based on the existing record. 2. The appeal to reopen a claim of service connection for a back disability. A December 2015 rating decision denied reopening a claim of service connection for a back disability. In the February 2016 notice of disagreement (NOD), he expressed disagreement with the determination regarding the back disability. A timely NOD initiates the appeal process and requires issuance of a statement of the case (SOC). The AOJ has not issued a SOC for that issue. Therefore, the Board is required to remand the matter for issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). 3. Entitlement to a TDIU rating. When evidence of unemployability is submitted during the course of an appeal of a rating assigned for a disability or such is specifically alleged, a claim for entitlement to a TDIU rating is considered part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has raised the issue of entitlement to a TDIU rating. See June 2015 statement and October 2015 VA Form 21-8940. The issue is inextricably intertwined with the issues being remanded. Therefore, consideration of the matter is deferred pending development and resolution of the other claims being remanded. The matters are REMANDED for the following: 1. Arrange for an audiological examination of the Veteran (with audiometric studies) to ascertain the current severity of his bilateral hearing loss. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. In addition to reporting audiometry findings, the examiner should elicit from the Veteran an account of the impact his hearing loss has on daily activity functioning, and should comment regarding whether the account is consistent with the findings on audiometry, as well as on the impact the level of hearing impairment shown by audiometry would be expected to have on occupational functioning. The examiner should address whether there are types of employment which would not be precluded by the Veteran’s hearing loss, taking into consideration he could communicate using written instruction. If the responses on audiometry remain inconsistent, and the testing is determined to be invalid, the examiner must explain why that is so (e.g., the Veteran does not understand, or is unable to comply with instructions or is engaging in malingering/deliberately providing compensation-driven responses, etc., and if malingering or deliberately provided inaccurate responses, identify the findings, inconsistencies, observations that support that conclusions). If the reason for invalid results cannot be discerned, explain why that is so. If the response is that the testing mode does not allow for an accurate assessment of the Veteran’s hearing acuity, indicate further whether there is any further specialized testing available that might enable an accurate assessment of the Veteran’s hearing acuity. All opinions must include rationale. 2. Issue a SOC addressing the claim to reopen a claim of service connection for a back disability. The Veteran should be reminded that this matter will be fully before the Board only if he timely perfects an appeal by filing a substantive appeal. 3. Upon readjudication of the other claims remanded, and following all further development indicated, adjudicate the claim for a TDIU rating (if the Veteran complies with his obligations in development of such claim). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.